( 1 ) ). The appellant-defendant had accepted the tender of the respondent-plaintiff and entrusted the work of the construction of the building of Medical College and Hospital at Surat to the respondent-defendant. The estimated cost of the tender was Rs. 7,94,642/- and the agreement was entered into in "b2" Form on 30th January 1964. The work order was issued to the respondent-plaintiff on 30th January 1964 and the work was required to be completed within one year, i. e. on or before 30th January 1965. The time was extended. Ultimately, the work was completed and certain payments were made. The respondent-plaintiff was aggrieved by non-payment of certain claims and therefore he filed Special Civil suit No. 210 of 1974 in the Court of the civil Judge (S. D.) at Surat. In respect of most of the items, the learned Trial judge has passed a decree in favour of the respondent-plaintiff and therefore the state has filed the present appeal. In respect of some of the items which were disallowed by the learned Trial Judge, the plaintiff has filed cross objections.

( 2 ) ). The claims allowed by the Trial Court are as follows: 1. Rs. 12,385/- in respect of using cement tiles on the terrace instead of rough Kota Stone. 2. 3. Rs. 159/- deduction for defective wooden shuttors. 4. Rs. 1,800/- Brass fittings instead of mortised locks. 5. Rs. 3,300/- For extra R. C. C. works 6. Rs. 17,232/- Loss of profit for the works included in the contract and not allowed to be done. 7.- 8. 9. Rs. 650/- Cartage. 10. Rs. 9,225/- G Penalty. 11. Rs. 6,480/- Interest at 9% on Rs. 72000/- paid late. 12. Rs. 1,ooo/- Expenses for extension of bank Guarantee. 13. Rs. 10,000/- Loss due to rise in prices of materials and labour during 1 years. Rs. 62,210/-

( 3 ) ). Although total of the aforesaid items allowed by the learned Trial Judge comes to Rs. 62,210/-, the operative part of the order states that the defendant shall pay to the plaintiff Rs. 66,210/ -. This is an obvious error of additional Rs. 4,000/ -.

( 4 ) ). The appellant-defendant is aggrieved by the aforesaid decree for the aforesaid claims and has challenged the same.

( 5 ) ). The respondent-plaintiff, having been aggrieved by the reduction of its claim no. 2 for Rs. 2200/- in respect of plaster of extra thickness; claim No. 8 for Rs. 1600/- in respect of payment of octroi; claim No. 11 for Rs. 3520/- in respect of interest and claim No. 13 for Rs. 16000/- in addition to Rs. 10,000/- awarded by the Trial Court towards escalation in price of materials and labour, total Rs. 23320/ , has filed the Cross objections.

( 6 ) ). Claim No. 1: Rs. 12,385/- this claim is in respect of providing plain cement tiles on the terrace and the rate claimed is Rs. 145/- per 100 sq. ft. This work was originally required to be done as per tender Item No. 17 by providing and fixing to 2" thick rough tender or sucket stone flooring laid in lime mortar for which the tender rate was Rs. 70/- per 100 sq. ft. The work has been done by providing plain cement tiles, whereas the rate of Rs. 70/- was in respect of rough stone. The plaintiff has been paid at the rate of Rs. 70/- per 100 sq. ft. which was the rate for providing and fixing rough stone. The plaintiff has claimed Rs. 145/- per 100 sq. ft. for providing and fixing plain cement tiles on the basis of sanctioned schedule of rates for the relevant year for this item.

( 7 ) ). The learned Assistant Government pleader has submitted that the plaintiff was permitted to use plain cement tiles with a condition that the rate shall be rs. 70/ per 100 sq. ft. and therefore the plaintiff is not entitled to claim any higher amount. In the plaint, para 7 (Claim no. 1), it is alleged that this work of providing plain cement tiles was got executed as per the orders of the department. In the written statement paragraph 8, this is not denied and it is submitted that the claim put by the plaintiff as if it is an extra item is not correct and that the said work has to be paid accor